A reader emailed me yesterday.
“Hey Eric, Clients are wondering about value of settlement NDAs after ex-Fox News HWE victims go public despite contracts. Your reaction?”
About a year ago, I had a post entitled, The “E” in E-Mail stands for Exhibit. As in Exhibit A. Here’s a snippet:
As part of my respect-in-the-workplace training, I tell employees and managers that bad e-mails are like dirty diapers: they stink and they never go away.
Yeah, about that…
If you’ve ever had to address a Charging Party’s EEOC Charge of Discrimination, you know that drafting a good Position Statement, in which the specific claims of discrimination are addressed and supported with documents and facts is hella-key.
This especially holds true now that the EEOC has announced new nationwide procedures that provide for the release of a company’s Position Statement and non-confidential attachments to a Charging Party or representative upon request during the investigation of a charge of discrimination.
More litigants are requesting that their adversaries produce social media evidence during litigation. Often this information is reasonably likely to lead to the discovery of admissible evidence at trial.
For example, a Facebook status update about a great day from a plaintiff suing her former employer for discrimination could bear on her claim for emotional distress. Therefore, she would have to produce this status update as part of discovery if requested to do so, because, not only is the information relevant, it is within the plaintiff’s “possession, custody, or control.”
Same holds trues for a plaintiff in a personal injury action claiming that she suffered a debilitating back injury. She may have to produce recent Facebook photos of her riding on a speedboat.
Savvy lawyers today use social media to mine and collect important data about litigants. But cross that line from savvy to shady, and you may find yourself in deep do-do.
(Kinda like the blow-out I encountered when I reached inside the back of my youngest’s wetsuit at the pool this weekend to check his diaper. But different. And TMI. Anyway…)
James McCarty of the The Plain Dealer reported here last week that an Ohio prosecutor was fired for pretending to be a woman in a Facebook chat with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony.
I’m a little late to the game on this case (Gatto v. United Airlines). It’s about a personal injury case in which the defendant sought discovery of a the plaintiff’s Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.
But here’s the part I like:
While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff’s account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff’s counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff’s proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.
Most parties (and their attorneys) expect that settlement communications are not admissible at trial. There’s even a federal rule of evidence on this subject. However, a federal court recently recognized an exception. But, with all due respect to the United States District Court for the District of New Jersey, the opinion is a little dry.
So, after the jump, I spiffed it up a bit — Point Break style, brah — with a few takeaways for practicing attorneys.
This is your wake-up call.
[Editor’s Note: The original theme for this post was the “Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition.” I had this bright idea to begin by cutting and pasting the lyrics to Guns N’ Roses’ “My Michelle,” and, let’s just say I bailed after the first line.]
So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.
Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine — the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival — while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on “Growing Pains,” could play the company decision-maker. We’ll call it “FML Aye Yai Yai!“
[Editor’s Note: I’m throwing Thicke a bone here. Don’t you think? According to IMDB.com, he just finished production on “Fugget About It“, in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]
So that’s the idea. More great posts and imaginative casting decisions, after the jump…
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I’m gearing up to host the Employment Law Blog Carnival on Wednesday, so I’m mailing it in today with a quick shout out to Venkat Balasubramani posting over at Eric Goldman’s Technology and Marketing Law Blog.
Admittedly, I have fallen behind on updating you, my loyal readers, on the world of social media and discovery. Mostly, because the most recent jurisprudence has been from outside of the Pennsylvania and everything pales in comparison to this great Commonwealth. Except, most recently, for the Philadelphia Eagles.
Speaking of which, have you heard this one?
Many times on this blog (e.g., here, here, and here), I’ve discussed the discovery of a plaintiff’s social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff’s injury isn’t as a severe as he claims it to be. So, it seeks access to plaintiff’s Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.
Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I’ll discuss a new one decided late last month and offer some related tips for employers after the jump…